Common use of Conditions to the Obligations of Parent and Sub Clause in Contracts

Conditions to the Obligations of Parent and Sub. The obligations of Parent and Sub to consummate the Merger are subject to the satisfaction (or waiver by Parent) of the following further conditions: (a) the representations and warranties of the Company shall have been true and accurate both when made and (except for those representations and warranties that address matters only as of a particular date which need only be true and accurate as of such date) as of the Effective Time as if made at and as of such time, except where the failure of such representations and warranties to be so true and correct (without giving effect to any limitation as to "materiality" or "material adverse effect" set forth therein), does not have, and is not likely to have, individually or in the aggregate, a material adverse effect on the Company and its Subsidiaries taken as a whole; provided, that the representations and warranties set forth in Sections 3.2 and 3.3 shall be true and correct in all respects; (b) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time; (c) each of the Ancillary Agreements shall be valid, in full force and effect and complied with in all material respects; (d) since the date of this Agreement, there shall not have occurred any event, change or effect having, or which could be reasonably likely to have, individually or in the aggregate, a material adverse effect on the Company and its Subsidiaries; (e) Parent shall have received an opinion of Fenwick & West LLP, substantially in the form attached as Exhibit H-1 hereto and otherwise reasonably satisfactory in form and substance to Parent, addressed to Parent and dated the Closing Date; (f) Parent shall have received an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, in form and substance reasonably satisfactory to Parent, dated the Effective Time, substantially to the effect that, on the basis of facts, representations and assumptions set forth in such opinion which are consistent with the state of facts existing as of the Effective Time, for federal income tax purposes, the Merger will constitute a "reorganization" within the meaning of Section 368(a) of the Code. In rendering such opinion, Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP may receive and rely upon representations contained in certificates of Parent, the Company and others; (g) The Company shall have furnished Parent with a certificate dated the Closing Date signed on behalf of it by the Chairman of the Board of Directors of the Company and the President and Chief Financial Officer of the Company to the effect that the conditions set forth in Sections 6.2(a) through (d) have been satisfied; and (h) The Company shall deliver to Parent a certification, in form and substance reasonably satisfactory to Parent, that neither the Company nor any of its Subsidiaries is or has been a U.S. real property holding company (as defined in Section 897(c)(2) of the Code) during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.

Conditions to the Obligations of Parent and Sub. The obligations of Parent and Sub to consummate effect the Merger are also subject to the satisfaction (or waiver by Parent) Parent on or prior to the Closing Date of the following further conditions: (a) without reference to any item disclosed on any form, document, proxy statements, reports, registration statements and schedules filed with or furnished to the SEC by XETA on or after the date hereof (i) the representations and warranties set forth in Section 2.3 (Capitalization) shall be true and correct in all respects other than de minimis inaccuracies as of the Company shall have been true date of this Agreement and accurate both when made as of the Closing Date and (except for those ii) each of the other representations and warranties that address matters only of XETA in this Agreement shall be true and correct as of the date of this Agreement and as of the Closing Date as though made on or as of the Closing Date (except to the extent any such representation or warranty was expressly made as of a particular date specified date, in which need only case such representation and warranty shall be true and accurate as of correct with respect to such specified date) as of the Effective Time as if made at and as of such time), except where the failure of any such representations and warranties to be so true and correct (without giving effect to any limitation qualification contained therein as to "materiality" materiality or "material adverse effect" set forth therein), does a XETA Material Adverse Effect) has not have, had and is not likely to have, individually or in the aggregate, a material adverse effect on the Company and its Subsidiaries taken as a whole; provided, that the representations and warranties set forth in Sections 3.2 and 3.3 shall be true and correct in all respects; (b) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time; (c) each of the Ancillary Agreements shall be valid, in full force and effect and complied with in all material respects; (d) since the date of this Agreement, there shall not have occurred any event, change or effect having, or which could be reasonably likely to have, individually or in the aggregate, a material adverse effect on the Company and its SubsidiariesXETA Material Adverse Effect; (eb) Parent XETA shall have received an opinion performed in all respects, all of Fenwick & West LLP, substantially its covenants set forth in the form attached as Exhibit H-1 hereto Section 5.5(c) and otherwise reasonably satisfactory shall have performed in form and substance all material respects all of its other covenants required to Parent, addressed be performed by it under this Agreement at or prior to Parent and dated the Closing Date; (fc) Parent shall have received an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, in form and substance reasonably satisfactory to Parent, dated the Effective Time, substantially to the effect that, on the basis of facts, representations and assumptions set forth in such opinion which are consistent with the state of facts existing as of the Effective Time, for federal income tax purposes, the Merger will constitute a "reorganization" within the meaning of Section 368(a) of the Code. In rendering such opinion, Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP may receive and rely upon representations contained in certificates of Parent, the Company and others; (g) The Company shall have furnished Parent with a certificate dated the Closing Date signed on behalf of it XETA by the Chairman an executive officer of the Board of Directors of the Company and the President and Chief Financial Officer of the Company XETA to the effect that the conditions set forth in Sections 6.2(aclauses (a) through and (b) above have been so satisfied; (d) During the period from the date of this Agreement to the Closing Date, there shall not have been satisfieda XETA Material Adverse Effect which shall not have been cured; and (he) The Company aggregate number of Appraisal Shares shall deliver to Parent a certification, in form and substance reasonably satisfactory to Parent, that neither the Company nor any of its Subsidiaries is not equal 15% or has been a U.S. real property holding company (as defined in Section 897(c)(2) more of the Code) during the applicable period specified in Section 897(c)(1)(A)(ii) shares of Common Shares as of the Coderecord date for the XETA Shareholders’ Meeting.

Conditions to the Obligations of Parent and Sub. The obligations of Parent and Sub to consummate effect the Merger are also subject to the satisfaction (or waiver by Parent) Parent on or prior to the Closing Date of the following further conditions: (a) (i) the representations and warranties of the Company contained in Sections 2.1 (Organization and Qualification; Subsidiaries), 2.2 (Charter and Bylaws), 2.3 (Capital Stock), 2.4(a) (Authority), 2.24 (Takeover Provisions) and 2.25 (Rights Agreement) shall have been be true and accurate both when made and correct in all material respects (except for those representations and warranties that address matters only in any such sections qualified as of to materiality or a particular date Company Material Adverse Effect, which need only shall be true and accurate as of such datecorrect in all respects) as of the Effective Time as if made at date of this Agreement and as of the Closing Date as though made on or as of the Closing Date (except to the extent expressly made as of an earlier date, in which case as of such timeearlier date) and (ii) the representations and warranties of the Company in this Agreement other than those specified in the preceding clause (i) shall be true and correct as of the date of this Agreement and as of the Closing Date as though made on or as of the Closing Date (except to the extent expressly made as of an earlier date, in which case as of such earlier date), in each case except where the failure of any such representations and warranties to be so true and correct (without giving effect to any limitation qualification as to "materiality" materiality or "material adverse effect" set forth therein), does not have, and is not likely to havea Company Material Adverse Effect) would not, individually or in the aggregate, have a material adverse effect on the Company and its Subsidiaries taken as a whole; provided, that the representations and warranties set forth in Sections 3.2 and 3.3 shall be true and correct in all respectsMaterial Adverse Effect; (b) the The Company shall have performed in all material respects all of its obligations hereunder covenants required to be performed by it under this Agreement at or prior to the Effective TimeClosing Date; (c) each Parent shall have received a certificate signed on behalf of the Ancillary Agreements shall be valid, Company by an executive officer of the Company to the effect that the conditions in full force clauses (a) and effect and complied with in all material respects(b) above have been so satisfied; (d) since The Company shall have consummated the date of this Agreementdisposition provided for in that certain Share Purchase Agreement dated May 28, there shall not have occurred any event2007, change or effect havingby and among the Company, or which could be reasonably likely to have, individually or in its affiliates named therein and Abu Dhabi National Energy Company PJSC (the aggregate, a material adverse effect on the “Canadian Company and its SubsidiariesSale”); (e) Parent The number of Dissenting Shares shall have received an opinion not exceed 5% of Fenwick & West LLP, substantially in the form attached as Exhibit H-1 hereto and otherwise reasonably satisfactory in form and substance outstanding shares of the Company Common Stock immediately prior to Parent, addressed to Parent and dated the Closing DateEffective Time; (f) Parent shall have received an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, (reasonably acceptable in form and substance reasonably satisfactory to Parent) from Xxxxxxx Xxxxx LLP, dated as of the Effective TimeClosing Date, substantially to the effect that, on the basis of facts, representations and assumptions set forth in such opinion which are consistent with the state of facts existing as of the Effective Time, that for federal income tax purposes, purposes (i) the Merger will constitute be treated as a "reorganization" reorganization within the meaning of Section 368(a) of the Code and (ii) each of Parent and the Company will be a party to such reorganization within the meaning of Section 368(b) of the Code, and such opinion shall not have been withdrawn, revoked or modified. In rendering such opinion, Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP may receive and rely Such opinion will be based upon representations of the Parties contained in certificates of Parent, this Agreement and in the Company and others;tax representation letters described in Section 5.16; and (g) The Company From the date of this Agreement through the Closing, there shall not have furnished Parent with a certificate dated occurred any change in the Closing Date signed on behalf of it by the Chairman of the Board of Directors condition (financial or otherwise), operations, business or properties of the Company and the President and Chief Financial Officer of the its subsidiaries that constitutes or is reasonably likely to constitute a Company to the effect that the conditions set forth in Sections 6.2(a) through (d) have been satisfied; and (h) The Company shall deliver to Parent a certification, in form and substance reasonably satisfactory to Parent, that neither the Company nor any of its Subsidiaries is or has been a U.S. real property holding company (as defined in Section 897(c)(2) of the Code) during the applicable period specified in Section 897(c)(1)(A)(ii) of the CodeMaterial Adverse Effect.

Conditions to the Obligations of Parent and Sub. The obligations of Parent and Sub to consummate the Merger are subject to the satisfaction (or waiver by ParentParent and Sub) of the following further conditions: (a) each of the representations and warranties of the Company contained in Section 4.2 (Capitalization) shall have been be true and accurate both when as of the Closing as if made at and as of such time (except for other than those representations and warranties that address matters only as of a particular date or only with respect to a specific period of time, which representations and warranties need only be true and accurate as of such datedate or with respect to such period), except for such inaccuracies as are de minimis in the aggregate; (b) each of the other representations and warranties of the Company shall be true and accurate as of the Effective Time date made and as of the Closing as if made at and as of such time (other than those representations and warranties that address matters only as of a particular date or only with respect to a specific period of time, which representations and warranties need only be true and accurate as of such date or with respect to such period), except where the failure of such representations and warranties to be so true and correct accurate (without giving effect to any limitation as to "“materiality" ” or "“material adverse effect" ” set forth therein), does not have, and is not likely to havewould not, individually or in the aggregate, have a material adverse effect on the Company and its Subsidiaries taken as a whole; provided, that the representations and warranties set forth in Sections 3.2 and 3.3 shall be true and correct in all respectsMaterial Adverse Effect; (bc) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time; (c) each of the Ancillary Agreements shall be valid, in full force and effect and complied with in all material respectsClosing; (d) since Parent shall have received a certificate signed by the chief financial officer of the Company, dated as of the Closing Date, to the effect that, to the knowledge of such officer, the conditions set forth in Section 7.2(a), Section 7.2(b), and Section 7.2(c) have been satisfied; (e) Company shall have delivered to Parent audited financial statements as of and for the year ended December 31, 2006; (f) Since the date of this Agreement, there shall not have occurred any event, circumstance, development, change or effect havingthat has had, or which could would reasonably be reasonably likely expected to have, individually or in the aggregate, a material adverse effect on the Company and its Subsidiaries;Material Adverse Effect; and (eg) Parent shall have received an opinion from the Company a certificate dated as of Fenwick & West LLP, substantially the Closing Date in the form attached as Exhibit H-1 hereto and otherwise reasonably satisfactory in form and substance to Parent, addressed to Parent and dated the Closing Date; (f) Parent shall have received an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, in form and substance reasonably satisfactory to Parent, dated the Effective Time, substantially to the effect that, on the basis of facts, representations and assumptions set forth in such opinion which are consistent with the state of facts existing as of the Effective Time, for federal income tax purposes, the Merger will constitute a "reorganization" within the meaning of Section 368(a) of the Code. In rendering such opinion, Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP may receive and rely upon representations contained in certificates of Parent, the Company and others; (g) The Company shall have furnished Parent with a certificate dated the Closing Date signed on behalf of it by the Chairman of the Board of Directors of the Company and the President and Chief Financial Officer of the Company to the effect that the conditions set forth in Sections 6.2(a) through (d) have been satisfied; and (h) The Company shall deliver to Parent a certification, in form and substance reasonably satisfactory to Parent, that neither the Company nor any of its Subsidiaries is or has been a U.S. real property holding company (as defined in Section 897(c)(2) of the Code) during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.A.

Conditions to the Obligations of Parent and Sub. The obligations of Parent and Sub to consummate the Merger are subject to the satisfaction (or waiver by Parent) of the following further conditions: (a) each of the representations and warranties of the Company (i) other than those set forth in Section 4.2 (Capitalization), Section 4.3 (Authorization; Validity of Agreement; Company Action), Section 4.17 (Board Vote; Company Requisite Vote; Takeover Statute), Section 4.21 (Brokers or Finders) and Section 4.22 (Opinion of Financial Advisors) shall have been be true and accurate both when made and as of the Closing as if made at and as of such time (except for other than those representations and warranties that address matters only as of a particular date or only with respect to a specific period of time which representations and warranties need only be true and accurate as of such date) as of the Effective Time as if made at and as of date or with respect to such timeperiod), except where the failure of such representations and warranties to be so true and correct accurate (without giving effect to any limitation as to "“materiality" ” or "“material adverse effect" ” set forth therein), does not have, and is not likely to havewould not, individually or in the aggregate, have a material adverse effect on the Company and its Subsidiaries taken as a whole; providedMaterial Adverse Effect, that the representations and warranties (ii) set forth in Sections 3.2 Section 4.3 (Authorization; Validity of Agreement; Company Action), Section 4.17 (Board Vote; Company Requisite Vote; Takeover Statute), Section 4.21 (Brokers or Finders) and 3.3 Section 4.22 (Opinion of Financial Advisors) shall be true and correct accurate when made and as of the Closing as if made at and as of such time (other than those representations and warranties that address matters only as of a particular date or only with respect to a specific period of time which representations and warranties need only be true and accurate as of such date or with respect to such period) and (iii) set forth in all respectsSection 4.2 (Capitalization) shall be true and accurate when made and as of the Closing as if made at and as of such time (other than those representations and warranties that address matters only as of a particular date or only with respect to a specific period of time which representations and warranties need only be true and accurate as of such date or with respect to such period), except for inaccuracies that are, in the aggregate, de minimis; (b) the Company shall have performed in all material respects all of its obligations hereunder the obligations, and complied in all material respects with all of the agreements, required to be performed by, or complied with by it it, under this Agreement at or prior to the Effective TimeClosing (it being understood and agreed that any inability of Parent and Sub to obtain the Financing that results primarily from a breach of any covenant or other agreement in this Agreement by the Company shall be deemed a failure of the condition set forth in this Section 7.2(b) to be satisfied; provided that Parent notified the Company in writing of such breach as soon as reasonably practicable after Parent became aware of such breach); (c) each Parent shall have received a certificate signed by an executive officer of the Ancillary Agreements shall be validCompany, dated as of the Closing Date, to the effect that, to the knowledge of such officer, the conditions set forth in full force Section 7.2(a) and effect and complied with in all material respectsSection 7.2(b) have been satisfied; (d) since the date of this Agreement, there shall not have occurred any fact, circumstance, change, event, change development or effect having, or which could be reasonably likely to havethat, individually or in the aggregate, constitutes a material adverse effect on the Company and its SubsidiariesMaterial Adverse Effect; (e) Parent the Company shall have received an opinion of Fenwick & West LLP, substantially in the form attached as Exhibit H-1 hereto and otherwise reasonably satisfactory in form and substance to Parent, addressed delivered to Parent and an affidavit, dated as of the Closing Date; (f) Parent shall have received an opinion , setting forth the Company’s name, address and federal employer identification number and stating under penalties of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, in form perjury that the Company is not and substance reasonably satisfactory to Parent, dated has not during the Effective Time, substantially to the effect that, on the basis of facts, representations and assumptions set forth in such opinion which are consistent with the state of facts existing as of the Effective Time, for federal income tax purposes, the Merger will constitute previous five years been a "reorganization" United States real property holding corporation within the meaning of Section 368(a) of the Code. In rendering such opinion, Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP may receive and rely upon representations contained in certificates of Parent, the Company and others; (g) The Company shall have furnished Parent with a certificate dated the Closing Date signed on behalf of it by the Chairman of the Board of Directors of the Company and the President and Chief Financial Officer of the Company to the effect that the conditions set forth in Sections 6.2(a) through (d) have been satisfied; and (h) The Company shall deliver to Parent a certification, in form and substance reasonably satisfactory to Parent, that neither the Company nor any of its Subsidiaries is or has been a U.S. real property holding company (as defined in Section 897(c)(2) of the Code; and (f) during unless (x) Parent (and/or any of its Subsidiaries or Affiliates) shall have received at least $5,000,000,000 in net proceeds as contemplated by the applicable period specified in Section 897(c)(1)(A)(ii) Debt Commitment Letter (whether through new term loans under Parent’s existing credit agreement, the issuance of the CodeSenior Notes or otherwise) prior to the commencement of the Marketing Period and (y) such proceeds, if funded into escrow, shall remain in escrow as of the date the Closing is required to occur pursuant to Section 2.3 (assuming for this purpose that the condition in this Section 7.2(f) has been satisfied), the Marketing Period shall have occurred and been completed.

Conditions to the Obligations of Parent and Sub. The obligations of Parent and Sub to consummate the Merger are subject to the satisfaction (or waiver by Parent) of the following further conditions: (a) Each of the representations and warranties made by the Company in this Agreement that is qualified by reference to materiality or Company Material Adverse Effect shall be true and correct, and each of the Company shall have been true and accurate both when made and (except for those other representations and warranties that address matters only as of a particular date which need only be true and accurate as of such date) as of the Effective Time as if made at and as of such time, except where the failure of such representations and warranties to be so true and correct (without giving effect to any limitation as to "materiality" or "material adverse effect" set forth therein), does not have, and is not likely to have, individually or in the aggregate, a material adverse effect on by the Company and its Subsidiaries taken as a whole; provided, that the representations and warranties set forth in Sections 3.2 and 3.3 this Agreement shall be true and correct in all respectsmaterial respects (other than those contained in Sections 3.2(a) and 3.9, which shall be true and correct), in each case as of the date of this Agreement and at and as of the Closing Date as if made on that date (except in any case that representations and warranties that expressly speak as of a specified date or time need only be true and correct as of such specified date or time); (b) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective TimeClosing Date; (c) each of the Ancillary Agreements shall be valid, in full force and effect and complied with in all material respects; (d) since the date of this Agreement, there no event, change, circumstance or effect shall not have occurred any event, change or effect havingthat has had, or which could reasonably would be reasonably likely expected to have, individually or in the aggregate, a material adverse effect on the Company and its SubsidiariesMaterial Adverse Effect; (ed) Parent shall have received an opinion of Fenwick & West LLP, substantially in the form attached as Exhibit H-1 hereto and otherwise reasonably satisfactory in form and substance to Parent, addressed to Parent and dated the Closing Date; (f) Parent shall have received an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, in form and substance reasonably satisfactory to Parent, dated the Effective Time, substantially to the effect that, on the basis of facts, representations and assumptions set forth in such opinion which are consistent with the state of facts existing as of the Effective Time, for federal income tax purposes, the Merger will constitute a "reorganization" within the meaning of Section 368(a) of the Code. In rendering such opinion, Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP may receive and rely upon representations contained in certificates of Parent, the Company and others; (g) The Company shall have furnished Parent with a certificate dated the Closing Date signed on its behalf of it by the Chairman of the Board of Directors of the Company and the President and its Chief Executive Officer or Chief Financial Officer of the Company to the effect that the conditions set forth in Sections 6.2(a), (b) through and (dc) have been satisfied; (e) any filing or consent with any Governmental Authority the absence of which would reasonably be expected to have a Company Material Adverse Effect shall have been obtained; (f) the ratio (expressed as a percentage) equal to the aggregate number of Shares held by Persons who have perfected their dissenters’ rights pursuant to the IBCA divided by the aggregate number of Shares issued and outstanding immediately prior to the Closing shall not be greater than 3%; (g) the Company shall have delivered to Parent evidence reasonably satisfactory to Parent of the resignation of all directors of the Company and, as specified by Parent in advance of the Closing, all directors of each subsidiary of the Company, in each case, effective at the Effective Time; (h) there shall not then be pending or threatened any litigation which in the reasonable opinion of Parent could be expected to result in a Company Material Adverse Effect, except for litigation related to the Company Recommendation; (i) the Company shall have provided Parent with a certificate stating that the Company is not and has not been a United States real property holding corporation under Treasury Regulations Section 1.897-2(h); and (hj) The Parent shall have determined (in its sole judgment) that there is no financial value after the Closing with respect to the Company Warrants set forth in Section 6.2(j) of the Company Disclosure Schedule, or the Company shall deliver have delivered to Parent a certification, waiver (in form and substance reasonably satisfactory to Parent, that neither Parent in its sole discretion) from each holder of the Company nor Warrants set forth in Section 6.2(j) of the Company Disclosure Schedule in which such holder waives all of its rights with respect to the Company Warrants to which such holder would otherwise be entitled, and releases the Company and any of its Subsidiaries is with respect thereto. The rights of Parent pursuant to this Section 6.2 will not be affected by any investigation conducted or has been a U.S. real property holding company knowledge acquired (as defined in Section 897(c)(2or capable of being acquired) by Parent at any time, whether before or after the execution and delivery of this Agreement, with respect to the accuracy of any representation or warranty of the Code) during the applicable period specified in Section 897(c)(1)(A)(ii) of the CodeCompany.

Conditions to the Obligations of Parent and Sub. The obligations of Parent and Sub to consummate effect the Merger are also subject to the satisfaction (or waiver by Parent) Parent on or prior to the Closing Date of the following further conditions: (a) the (i) representations and warranties set forth in Sections 2.1(a) (Organization and Qualification), 2.2 (Certificate of Incorporation and Bylaws), 2.3 (Capitalization) and 2.4 (Authority; Due Authorization; Binding Agreement; Approval) shall be true and correct in all respects as of the Closing Date as though made on or as of the Closing Date (except to the extent any such representation or warranty was expressly made as of a specified date, in which case such representation and warranty shall be true and correct with respect to such specified date) and (ii) other representations and warranties of the Company INX in this Agreement shall have been be true and accurate both when correct as of the Closing Date as though made and on or as of the Closing Date (except for those representations and warranties that address matters only to the extent any such representation or warranty was expressly made as of a particular date specified date, in which need only case such representation and warranty shall be true and accurate as correct with respect to such specified date), except, in the case of such date) as of the Effective Time as if made at and as of such timethis clause (ii), except where the failure of any such representations and warranties to be so true and correct (without giving effect to any limitation qualification contained therein as to "materiality" materiality or "material adverse effect" set forth therein), does an INX Material Adverse Effect) has not have, had and is not reasonably likely to have, individually or in the aggregate, a material adverse effect on the Company and its Subsidiaries taken as a whole; provided, that the representations and warranties set forth in Sections 3.2 and 3.3 shall be true and correct in all respectsan INX Material Adverse Effect; (b) the Company INX shall have performed in all material respects all of its obligations hereunder covenants required to be performed by it under this Agreement at or prior to the Effective TimeClosing Date; (c) each Parent shall have received a certificate signed on behalf of INX by an executive officer of INX to the Ancillary Agreements shall be valid, effect that the conditions in full force Sections 6.2(a) and effect and complied with in all material respects(b) above have been so satisfied; (d) since the date of this Agreement, there shall not have occurred been any change, effect, event, change circumstance, condition, occurrence or effect having, or which could be reasonably likely to havedevelopment that, individually or in the aggregate, a material adverse effect on the Company and its Subsidiarieshas had or would be reasonably likely to have an INX Material Adverse Effect; (e) Parent no more than ten percent (10%) of the Common Shares shall have received an opinion of Fenwick & West LLP, substantially in the form attached as Exhibit H-1 hereto and otherwise reasonably satisfactory in form and substance to Parent, addressed to Parent and dated the Closing Datebe Appraisal Shares; (f) Parent shall have received (i) a certification from INX, signed by an opinion authorized officer of SkaddenINX, Arpsthat INX is not, Slate, Xxxxxxx & Xxxx LLP, in form and substance reasonably satisfactory to Parent, dated has not been at any time during the Effective Time, substantially to five years preceding the effect that, on the basis date of facts, representations and assumptions set forth in such opinion which are consistent with the state of facts existing as of the Effective Time, for federal income tax purposes, the Merger will constitute a "reorganization" within the meaning of Section 368(a) of the Code. In rendering such opinion, Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP may receive and rely upon representations contained in certificates of Parent, the Company and others; (g) The Company shall have furnished Parent with a certificate dated the Closing Date signed on behalf of it by the Chairman of the Board of Directors of the Company and the President and Chief Financial Officer of the Company to the effect that the conditions set forth in Sections 6.2(a) through (d) have been satisfied; and (h) The Company shall deliver to Parent a certification, in form and substance reasonably satisfactory to Parent, that neither the Company nor any of its Subsidiaries is or has been a U.S. United States real property holding company (company, as defined in Section 897(c)(2) of the Code, such certification in form and substance reasonably satisfactory to Parent and conforming to the requirements of Treasury Regulations Section 1.1445-2(c)(3) during and 1.897-2(h), and (ii) proof that INX has provided notice of such certification to the applicable period specified Internal Revenue Service in accordance with the provisions of Treasury Regulations Section 897(c)(1)(A)(ii1.897-2(h)(2); (g) the Company shall not be in default in any material respect under the Amended and Restated Credit Agreement by and among the Company, Castle Pines Capital LLC and the other parties thereto, which default is not waived by Castle Pines Capital LLC; and (h) INX shall have obtained the consents and approvals set forth on Section 6.2(h) of the CodeINX Schedule.

Conditions to the Obligations of Parent and Sub. The obligations of Parent and Sub to consummate the Merger are subject to the satisfaction (or waiver by Parent) of the following further conditions: (a) the representations and warranties of the Company Companies shall have been true and accurate both when in all respects (in the case of any representation or warranty containing any materiality or Material Adverse Effect qualification) or in all material respects (in the case of any representation or warranty without any materiality or Material Adverse Effect qualification) as of the date of this Agreement and the Effective Time as if made at and as of such time (except for those representations and warranties that address matters only as of a particular date or only with respect to a specific period of time which need only be true and accurate as of such date) as of date or with respect to such period); notwithstanding the Effective Time as if made at foregoing, it is acknowledged and as of such time, except where agreed by the Companies that the failure of such representations and warranties to be so true and correct (without giving effect to any limitation as to "materiality" or "material adverse effect" set forth therein), does not have, and is not likely to have, individually or in the aggregate, a material adverse effect on the Company and its Subsidiaries taken as a whole; provided, that of the representations and warranties set forth in Sections 3.2 Section 3.11(b) and 3.3 shall Section 3.14(a) to be true and correct shall be deemed incorrect in all respectsa material respect; provided, however, that if Parent reasonably determines that a verbal statement by a Governmental Authority constitutes a threat of criminal charges by a Governmental Authority against any employee of the Companies with respect to actions taken in the scope of his or her duties or against the Companies or a threat that the Companies would be subject to a governmental order or a party to a settlement agreement or corporate integrity agreement with a Governmental Authority that would, after the Closing, apply to any of the businesses, properties or assets of the Companies, Parent or any of Parent's affiliates, the Companies shall have thirty (30) days to cure the facts or circumstances which are a basis for such charge or agreement but only if such cure eliminates such charge or agreement; provided, further, that such cure period may be extended by mutual agreement of the parties hereto; provided, further, that notwithstanding the foregoing, any such cure period shall automatically terminate two business days prior to the Outside Date. At any time prior to the Closing, the Companies shall be entitled to deliver to Parent and Sub revised Companies Disclosure Schedules (the “Revised Companies Disclosure Schedules”). If the Revised Companies Disclosure Schedules are delivered to Buyers and the Closing occurs, the representations and warranties set forth herein shall be subject to the Revised Companies Disclosure Schedules, and the term “Companies Disclosure Schedules” shall mean the Companies Disclosure Schedules attached hereto as modified by the Revised Companies Disclosure Schedules; (b) the Company Companies shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time; (c) each of the Ancillary Agreements shall be valid, in full force and effect and complied with in all material respects; (d) since the date of this Agreement, there shall not have occurred any event, change or effect having, or which could be reasonably likely to have, individually or in the aggregate, a material adverse effect on the Company and its Subsidiaries; (e) Parent shall have received an opinion of Fenwick & West LLP, substantially in the form attached as Exhibit H-1 hereto and otherwise reasonably satisfactory in form and substance to Parent, addressed to Parent and dated the Closing Date; (f) Parent shall have received an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, in form and substance reasonably satisfactory to Parent, dated the Effective Time, substantially to the effect that, on the basis of facts, representations and assumptions set forth in such opinion which are consistent with the state of facts existing as of the Effective Time, for federal income tax purposes, the Merger will constitute a "reorganization" within the meaning of Section 368(a) of the Code. In rendering such opinion, Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP may receive and rely upon representations contained in certificates of Parent, the Company and others; (g) The Company Companies shall have furnished Parent with a certificate dated the Closing Date signed on behalf of it by the Chairman of the Board of Directors of the Company and the President and Chief Financial Officer of the Company to the effect that the conditions set forth in Sections Section 6.2(a) through and (db) have been satisfied; (d) at a meeting of the stockholders of Parent duly called and held for such purpose, the holders of a majority of the Parent Common Stock present and entitled to vote at such meeting shall have approved by affirmative vote the Proposals; (e) the ratio (expressed as a percentage) equal to the aggregate number of Shares held by Persons who have perfected their appraisal rights pursuant to the DGCL divided by the aggregate number of Shares issued and outstanding immediately prior to the Closing shall not be greater than 10%; (f) the Companies shall have delivered to Parent evidence reasonably satisfactory to Parent of the resignation of all directors of the Companies effective at the Effective Time; (g) since December 31, 2007, there shall not have been any material adverse change in the financial condition, operating profits, backlog, assets, liabilities, operations, business prospects, applicable regulations, employee relations or customer or supplier relations of the Companies; (h) the Companies shall have delivered to Parent a copy of the resolutions adopted by the Board of Directors of the Companies approving this Agreement and the Merger, certified by their respective Secretaries; (i) At the Closing, the Companies shall not have any Indebtedness except as disclosed pursuant to Section 3.2(c) or as permitted under this Agreement; Parent shall have received amendments, satisfactory to Parent, of any agreements between Pac-Van and the employees of Pac-Van which contains provisions triggered by the consummation of the Merger or which would terminate upon the consummation of the Merger; (j) each stockholder who will receive shares of Parent Common Stock as part of the Merger Consideration and Parent shall have executed and delivered that certain Stockholders Agreement substantially in the form of Exhibit D attached hereto; (k) Xxxxxxxx Xxxxxxxxx and Pac-Van shall have executed and delivered that certain First Amendment to Employment Agreement substantially in the form of Exhibit E attached hereto; (l) All MOAC Stock Options shall have been exercised or terminated pursuant to this Agreement; (m) The Companies shall have current assets (including cash) minus current liabilities, including unearned revenue (“Working Capital”) at Closing, not more negative than negative Four Million Dollars ($4,000,000) less the amount of accounts payable associated with each modular building project sale greater than $500,000 that has not been invoiced as of the Closing; (n) The Companies shall have delivered to Parent a certificate setting forth the Working Capital of the Companies as of the Closing (the “Working Capital Certificate”), and Parent shall have approved the Working Capital Certificate; (o) Each of the MOAC Stockholders shall have executed and delivered to Parent the Pledge Agreement substantially in the form of Exhibit B; (p) Parent and Sub, in their sole discretion, shall have approved the Revised Companies Disclosure Schedules; and (hq) The Company Companies shall deliver have delivered to Parent a certification, in form and substance reasonably satisfactory to Parent, that neither the Company nor any Written Consent executed by all holders of its Subsidiaries is or has been a U.S. real property holding company (as defined in Section 897(c)(2) Class A Common Stock of the Code) during the applicable period specified in Section 897(c)(1)(A)(ii) of the CodeMOAC.

Conditions to the Obligations of Parent and Sub. The obligations of Parent and Sub to consummate the Merger are subject to the satisfaction (or waiver by Parent) of the following further conditions: (a) the representations and warranties of the Company shall have been true and accurate both when made and (except for those representations and warranties that address matters only as of a particular date which need only be true and accurate as of such date) as of the Effective Time as if made at and as of such time, except where the failure of such representations and warranties to be so true and correct (without giving effect to any limitation as to "materiality" or "material adverse effect" set forth therein), does not have, and is not likely to have, individually or in the aggregate, a material adverse effect on the Company and its Subsidiaries Subsidiaries, taken as a whole; provided, PROVIDED, that the representations and warranties set forth in Sections 3.2 4.2 and 3.3 4.3 shall be true and correct in all respects; (b) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time; (c) each the Company shall have obtained, and there shall be in full force and effect, the consents described in Section 7.2(c) of the Ancillary Agreements Disclosure Schedule; (d) the Offer Letters shall be valid, in full force and effect and complied with in all material respectsrespects by the employee signatory thereto; (de) at least forty (40) of the individuals identified in Section 7.2(e) of the Disclosure Schedule shall have countersigned an offer letter, in substantially the form attached as Schedule 7.2(e) of the Disclosure Schedule, and each of such offer letters shall be valid, in full force and effect and complied with in all material respects by the employee signatory thereto; (f) since the date of this Agreement, there shall not have occurred any event, change or effect having, or which could would be reasonably likely to have, individually or in the aggregate, a material adverse effect on the Company and its Subsidiaries, taken as a whole; (e) Parent shall have received an opinion of Fenwick & West LLP, substantially in the form attached as Exhibit H-1 hereto and otherwise reasonably satisfactory in form and substance to Parent, addressed to Parent and dated the Closing Date; (fg) Parent shall have received an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, in form and substance reasonably satisfactory counsel to Parent, dated the Effective Time, substantially to the effect that, on the basis of facts, representations and assumptions set forth in such opinion which are consistent with the state of facts existing as of the Effective Time, for federal income tax purposes, to the effect that the Merger (taking into account the effect of the Upstream Merger, if applicable) will constitute qualify as a "reorganization" reorganization within the meaning of Section 368(a) of the Code. In rendering The issuance of such opinion, Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP may receive and rely opinion shall be conditioned upon representations contained in certificates the receipt by such counsel of customary representation letters from each of Parent, Sub and the Company Company, in each case, in form and others;substance reasonably satisfactory to each counsel. Each such representation letter shall be dated on or before the date of such opinion and shall not have been withdrawn or modified in any material respect. The opinion condition referred to in this Section 7.2(g) shall not be waivable after receipt of the stockholder approval referred to in Section 7.1(b), unless further stockholder approval is obtained with appropriate disclosure; and (gh) The the Company shall have furnished Parent with a certificate dated the Closing Date signed on behalf of it by the Chairman of the Board of Directors of the Company and the President and Chief Financial Officer or any Vice President of the Company to the effect that the conditions set forth in Sections 6.2(a7.2(a) through (df) have been satisfied; and (h) The Company shall deliver to Parent a certification, in form and substance reasonably satisfactory to Parent, that neither the Company nor any of its Subsidiaries is or has been a U.S. real property holding company (as defined in Section 897(c)(2) of the Code) during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.

Conditions to the Obligations of Parent and Sub. The obligations of Parent and Sub to consummate the Merger are subject to the satisfaction (or waiver by Parent) of the following further conditions: (a) the representations and warranties of the Company shall have been be true and accurate both when made and (except for those representations and warranties that address matters only as of a particular date which need only be true and accurate as of such date) as of the Effective Time as if made at and as of such time, except where the failure of such representations and warranties to be so true and correct (without giving effect to any limitation as to "“materiality" ” or "“material adverse effect" ” set forth therein), does not have, and is not reasonably likely to have, individually or in the aggregate, a material adverse effect on the Company and its Subsidiaries taken as a whole; provided, that the representations and warranties set forth in Sections 3.2 3.2, 3.3 and 3.3 3.28 shall be true and correct in all respects; provided, however, that the representations and warranties set forth in Section 3.2 shall be deemed true and correct in all respects if the sum of the differences between (i) the number of shares identified in each of the respective clauses set forth in Section 3.2; and (ii) the actual number of shares required to be identified in each such clause set forth in Section 3.2 is less than, in the aggregate, thirty thousand (30,000) shares; (b) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time; (c) the Company shall have obtained, and there shall be in full force and effect, the consents described in Section 6.2 of the Company Disclosure Schedule, if any; (d) each of the Ancillary Agreements shall be valid, in full force and effect and complied with in all material respects; (de) since the date of this Agreement, there shall not have occurred any event, change or effect having, or which could be reasonably likely to have, individually or in the aggregate, a material adverse effect on the Company and its Subsidiaries; (ef) Parent shall have received the opinion of Sxxxxxx Xxxx, counsel to Parent, based upon representations of Parent, Merger Sub and the Company and normal assumptions, to the effect that the Merger will be treated for federal income tax purposes as a reorganization qualifying under the provisions of section 368(a) of the Code, which opinion shall not have been withdrawn or modified in any material respect. The issuance of such opinion shall be conditioned on receipt by Sxxxxxx Xxxx of representation letters from each of Parent and Company as contemplated in Section 5.15 of this Agreement. Each such representation letter shall be dated on or before the date of such opinion and shall not have been withdrawn or modified in any material respect as of the Effective Time; (g) Parent shall have received an opinion of Fenwick & West LLPGxxx Xxxx, substantially in the form attached as Exhibit H-1 F-1 hereto and otherwise reasonably satisfactory in form and substance to Parent, addressed to Parent and dated the Closing DateParent; (f) Parent shall have received an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, in form and substance reasonably satisfactory to Parent, dated the Effective Time, substantially to the effect that, on the basis of facts, representations and assumptions set forth in such opinion which are consistent with the state of facts existing as of the Effective Time, for federal income tax purposes, the Merger will constitute a "reorganization" within the meaning of Section 368(a) of the Code. In rendering such opinion, Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP may receive and rely upon representations contained in certificates of Parent, the Company and others; (gh) The Company shall have furnished Parent with a certificate dated the Closing Date signed on behalf of it by the Chairman of the Board of Directors of the Company and or the President and Chief Financial Officer of the Company to the effect that the conditions set forth in Sections 6.2(a) through (df) have been satisfied; and (hi) The Company shall deliver to Parent a certification, in form and substance reasonably satisfactory to Parent, that neither Each employee of the Company nor any as of its Subsidiaries is or has been the Effective Time shall have executed and delivered a U.S. real property holding company Proprietary Rights and Confidentiality Agreement (as defined in Section 897(c)(23.18) and confirmation of the Code) during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code“at will” employment to Parent.

Conditions to the Obligations of Parent and Sub. The obligations of Parent and Sub to consummate the Merger are subject to the satisfaction (or waiver by ParentParent and Sub) of the following further conditions: (a) each of the representations and warranties of the Company shall have been be true and accurate both when as of the Closing as if made at and as of such time (except for other than those representations and warranties that address matters only as of a particular date or only with respect to a specific period of time, which representations and warranties need only be true and accurate as of such date) as of the Effective Time as if made at and as of date or with respect to such timeperiod), except where the failure of such representations and warranties to be so true and correct accurate (without giving effect to any limitation as to "“materiality" ” or "“material adverse effect" ” set forth therein), does not have, and is not likely to havewould not, individually or in the aggregate, have a material adverse effect on the Company and its Subsidiaries taken as a whole; provided, that the representations and warranties set forth in Sections 3.2 and 3.3 shall be true and correct in all respectsMaterial Adverse Effect; (b) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective TimeClosing; (c) each of the Ancillary Retention Agreements shall have been executed by all of the parties thereto and copies delivered to Parent; (d) each of the parties holding a Company Option listed on Schedule 7.2(d) shall have duly and properly exercised such Company Option and, as a result of such exercise be validentitled to receive the number of shares of Company Common Stock (which, at the Effective Time, will convert into the right to receive Company Common Stock Merger Shares at the Company Common Stock Merger Exchange Ratio) as set forth on Schedule 7.2(d); (e) each Conversion Debt Exchange Agreement shall be in full force and effect and complied no Conversion Debt Holder shall have notified the Company (in writing or orally) that such Conversion Debt Holder is terminating or withdrawing the Conversion Debt Exchange Agreement of the Conversion Debt Holder or is otherwise intending not to comply with in all material respects;the Conversion Debt Holder’s obligations under such Conversion Debt Exchange Agreement. (df) since the date of this Agreement, there each Company Option Waiver Agreement shall not be in full force and effect and no Company Option Waiver shall have occurred any event, change or effect having, or which could be reasonably likely to have, individually or in the aggregate, a material adverse effect on notified the Company and its Subsidiaries;(in writing or orally) that such Company Option Waiver is terminating or withdrawing the Company Option Waiver Agreement of the Company Option Waiver or is otherwise intending not to comply with the Company Option Waiver’s obligation under such Company Option Waiver Agreement. (eg) Parent shall have received an opinion a certificate signed by each of Fenwick & West LLPthe chief executive officer and chief financial officer of the Company, substantially in the form attached dated as Exhibit H-1 hereto and otherwise reasonably satisfactory in form and substance to Parent, addressed to Parent and dated of the Closing Date, to the effect that, to the knowledge of such officer, the conditions set forth in paragraphs 7.2(a), (b), (c), (d), (e) and (f) have been satisfied; (fh) Parent shall have received a written commitment from Agile Opportunity Fund LLC, or an opinion Affiliate of SkaddenAgile Opportunity fund LLC (in either case, Arps“Agile”) to loan Parent no less than $525,000.00, Slateon terms no less favorable to Parent as the form, Xxxxxxx & Xxxx LLPterms and provisions of loans previously granted by Agile to Parent, and otherwise reasonably acceptable to Parent; (i) None of the shareholders of Company Common Stock, Company Series A Preferred Stock and Company Series B Preferred Stock shall have dissented from the Merger and is seeking to obtain payment of the fair value of such holders Dissenting Shares, in accordance with the VSCA (or if such holder has elected to so dissent, not withdrawn such dissent in accordance with the VSCA); (j) Parent shall have received from Xxxxxx a confirmation in writing of Xxxxxx, in form and substance reasonably satisfactory to Parent, dated of Xxxxxx’x irrevocable agreement (i) to accept a cash payment of $25,000 in full satisfaction of the Effective TimeXxxxxx Debt and (ii) that the remainder of the Company’s obligations under the Xxxxxx Bridge Note shall be fully satisfied by the issuance to Xxxxxx of 1,123,778 shares of Parent Common Stock (Xxxxxx being deemed a Conversion Debt Holder, substantially such remaining obligation referred to in clause (ii) being deemed a Conversion Debt and the agreement set forth in clause (ii) being deemed a Conversion Debt Exchange Agreement for the purposes of this Agreement); (k) Parent shall have received original executed copies of each and every Conversion Debt Exchange Agreement; (l) Parent shall have received the legal opinion of counsel to the Company, in form and substance satisfactory to Parent, to the effect that, on than the basis of facts, representations and assumptions set forth in such opinion which are consistent Company has complied with the state of facts existing as requirements of the Effective Time, for federal income tax purposes, VSCA with respect to the Merger will constitute a "reorganization" within the meaning of Section 368(a) of the Code. In rendering such opinionin all respects, Skaddenincluding, Arps, Slate, Xxxxxxx & Xxxx LLP may receive and rely upon representations contained in certificates of Parentbut not limited to, the Company and others;Shareholder Approval; and (gm) The Company shall have furnished Parent with a certificate dated the Closing Date signed on behalf of it by the Chairman of the Board of Directors of the Company executed and the President and Chief Financial Officer of the Company to the effect that the conditions set forth in Sections 6.2(a) through (d) have been satisfied; and (h) The Company shall deliver delivered to Parent a certification, the Securities Purchase Agreement substantially in the form and substance reasonably satisfactory to Parent, that neither the Company nor any of its Subsidiaries is or has been a U.S. real property holding company attached as Exhibit 7.2 (as defined in Section 897(c)(2) of the Code) during the applicable period specified in Section 897(c)(1)(A)(ii) of the Codem).